Preventing Minority Rule by the Administrative State

Jon Huntsman and Joseph Lieberman have written an interesting piece arguing against rule by narrow majorities. They believe rule by the 51 percent leads to polarization, instability, and oppression of minorities. I generally agree, and Mike Rappaport and I have devoted a substantial portion of our careers arguing that supermajority rule requiring consensus for government action, particularly at the federal level, is often better than narrow majority rule.

But even worse than enactment of coercive regulation by a bare majority is that by a minority. And the modern American administrative state encourages minority rule. The basic reason is that the President is likely to represent more the median voter of his party rather than the median voter of the nation. His nomination was secured by satisfying these voters. To be sure, his election and reelection depends on assembling a broader coalition but citizens appear to vote at the national election more on the state of the economy and a few very high visibility policies than a President’s overall administrative record.

As a result, an administration’s regulatory agenda will often represent the preferences of only a minority of the nation. Sadly, administrative law gives the President and his appointees substantial discretion to follow such preferences. Broad delegations allow for the choice of a wide range of policy points, including those on the more extreme ends of the spectrum. And Chevron even allows for loose interpretation of these delegations. Even previous regulations by administrations of opposing parties often prove no obstacle to pursuit of a strongly partisan agenda,  because Auer deference allows an administration to interpret them loosely as well. Democratic administrations may benefit a bit more from these tools, because they are less likely to be checked by a bureaucracy that is more broadly sympathetic to their goals.

Thus, those who disfavor minority coercion have yet another reason to support the taming of the administration state. The Republican Congress can begin this process by enacting the REINS Act.  That act would require regulations that cost a substantial amount of money to be enacted by Congress under streamlined voting procedures, thus empowering centrist voters who are better represented in Congress, particularly in the Senate.  Congress should also enact framework legislation that would reduce Chevron deference and eliminate Auer deference, thus constraining executive discretion. Finally, Congress could also require multimember agencies to enact new rules that burden citizens by supermajority vote, thus requiring buy-in by commissioners of the party opposing the President.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. nobody.really says

    Fair arguments for adding more checks on executive power. But the proposed remedies both under- and over-shoot the mark.

    First, if we really want to worry about minority control, we should eliminate the Electoral College, perhaps eliminate the Senate, and elect Congressmen at large rather than from districts. At a minimum, we should remedy gerrymandering. In contrast, McGinnis’s proffered remedies seem like pretty small potatoes.

    Second, it is far from clear why we would limit the proposed remedies only to administrative actions that would “cost a substantial amount of money.” Cost is irrelevant to the issue of unrepresentativeness.

    Moreover, what does cost mean in this context? Do I understand McGinnis to argue that the Trump Administration should not be able to impair the functioning of ObamaCare via administrative means because that might result in “substantial cost” to the program’s beneficiaries?

    Finally, it is unclear to me that Congress’s actions are more representative of the public’s wishes than the President’s. The more scrutiny an office-holder receives, the greater the difficulty the office-holder has in selling out the public’s (perceived) interest to special interests. Congressmen are famously successful at avoiding responsibility for their actions. Most votes are unrecorded. Given gerrymandering, most Congressmen face little sanction for doing anything that differs from the dictates of the party; they need only fear primary challenges. The party whip can let individual party members avoid particularly challenging votes when those votes would be superfluous for winning. Moreover, most people can’t even name their representative. In contrast, the public is able to recognize and blame the executive for all manner of things (including things beyond the executive’s powers). Thus, we can’t be surprised that the percentage of Congressmen who get re-elected exceeds the percentage of executives who do so.

    I wonder how many people favor massive tax cuts for the rich—and whether the Republican Party is going to enact them anyway?

  2. gabe says

    Nope!

    Just do away with the Admin Procedures Act.

    You want a law – do it the old fashioned way – Pass it as Legislation through the Congress. Congress being lazy and ineffectual may finally realize that we do not need as many laws / procedures / regulations.

    Nobody really is right about “costs” – there are costs to everything. Indeed, it may be argued that that abortion of a law, commonly referred to as ObamaCare((s) in recognition of his vaunted *legacy*) was designed to induce significant costs were it to be repealed.
    All this talk about costs is beside the point.
    Realize that this government *ought* not to be doing what it, and it’s *experts* presume to be entitled and justified in doing.

  3. nobody.really says

    Just do away with the Admin Procedures Act.

    I suppose Congress could. Of course, that wouldn’t do away with agencies. The first Congress under the Constitution organized the Department of War, for example.

    And the APA was created to rein in the discretion of agencies, forcing them to go through specified procedures–involving notice and opportunity for comment–before they can make legally binding pronouncements. Not sure why you’d want to do away with those restrictions, but I guess it would be legal to do so.

    And I suppose we could even go so far as to have Congress strip all agencies of any binding power, requiring everything to go through Congress. So no military personnel would have to wear uniforms unless Congress expressly said so. And expressly stated exactly what each uniform would look like–down to the number of ivory buttons. And any change to that number or composition would require a new act of Congress. Every decision about who could get a passport or federal driver’s licence. Every contract for paper clips. The price of every fishing licence for federal waters. Etc.

    Now imagine conducting WWII under this legal regime.

    Hey, maybe that’s just the price of freedom. Freedom isn’t free. Under this regime, I expect freedom would be priceless.

    • gabe says

      No – what it would do is, perhaps, force the Congress to make an informed, and one would hope, sober, decision as to WHAT the Congress ought to be involved in regulating.

      Yes, I know, that effectively that is what the Admin Proc Act does – BUT, under APA it simply means that the congress is saying, “Heck, there is too much stuff going on here; you guys do it but follow some simple rules.:

      That is insufficient for me. The onus should be on the congress, our designated lawmaking authority, If perhaps, they find their workload being a bit too heavy, they always have the option of declining to regulate the amount of water that runs off my back yard into the neighboring orchard.

      Quite right about the military. Then again, do you really want to have the Dept of Justice providing legal guidance to the DOD’s JAG Corps on rules of engagement such that fighting units must wait for approval before returning fire.
      NOW is that the way we should have fought WWII?

      I think not. Do you?

      Always, it is a question of balance AND a commitment to limit Executive (heck, Congressional and Judicial) actions to those specifically granted under the constitution.

      Pretty simple AND it does limit institutional empire building (and lets me empty the water from my hot tub onto the grass of my back yard w/o interference).

    • gabe says

      No, the APA was created to further enable “enlightened administration” (whatever the heck that was SUPPOSED to mean, it sure did not work out that way) and that was how it was sold by many of the proponents.

      Also, once again, you use your old trick of attempting to argue that since governmenr MUST and OUGHT to do some things, that it is therefore justified in doing EVERYTHING that it has a fancy to.

      Ain’t buying it buddy. why do you persist in doing this?

      • nobody.really says

        Also, once again, you use your old trick of attempting to argue that since governmenr MUST and OUGHT to do some things, that it is therefore justified in doing EVERYTHING that it has a fancy to.

        It would be helpful if you could quote what I said that would lead you to this conclusion.

        That said, the trick in law and public policy is not to announce your opinion that “Government goes too far!” (or that “Government doesn’t go far enough!”). The trick is to articulate a principle for guiding how far government should go. Thus far, I don’t see where you’ve done that.

        • gabe says

          It is clear however that you have articulated a belief that government ought to do everything that suits its fancy.

          Rather than cite one specific line of your paean to Expert Administration, one need only read the entire post to perceive the thrust of it.

          Of course, one would need the Department of War, as it was then called, but it does not follow that since Dept A was required that Dept Z, let us say the Dept of Education is also required. That in fact is the essence of your argument.

          And I did provide an articulation of the limits – restrict yourself to the specific grant of powers found in the US constitution. One specific example, let us get back to a jurisprudence (and a Legislative disposition) that even remotely respects the intended limits of the Commerce Clause.

          Can add more if you would like – but it wouldn’t do any good anyway as nobody really believes that government ought to do everything.

          • gabe says

            And now for *historical* support for my thesis from dickens:

            “Dickens’ Circumlocution Office from Little Dorrit, dedicated to the proposition of How Not to Do It:

            The Circumlocution Office was (as everybody knows without being told) the most important Department under Government. No public business of any kind could possibly be done at any time without the acquiescence of the Circumlocution Office. Its finger was in the largest public pie, and in the smallest public tart. It was equally impossible to do the plainest right and to undo the plainest wrong without the express authority of the Circumlocution Office. If another Gunpowder Plot had been discovered half an hour before the lighting of the match, nobody would have been justified in saving the parliament until there had been half a score of boards, half a bushel of minutes, several sacks of official memoranda, and a family-vault full of ungrammatical correspondence, on the part of the Circumlocution Office.

            This glorious establishment had been early in the field, when the one sublime principle involving the difficult art of governing a country, was first distinctly revealed to statesmen. It had been foremost to study that bright revelation and to carry its shining influence through the whole of the official proceedings. Whatever was required to be done, the Circumlocution Office was beforehand with all the public departments in the art of perceiving — HOW NOT TO DO IT.”

            subsumed within dickens exegesis is, of course, the question: “Ought they to do it in the first instance?”

          • nobody.really says

            one would need the Department of War, as it was then called, but it does not follow that since Dept A was required that Dept Z, let us say the Dept of Education is also required. That in fact is the essence of your argument.

            And I did provide an articulation of the limits – restrict yourself to the specific grant of powers found in the US constitution.

            As far as I know, the Department of War and the Department of Education arose from the same place: enactments by Congress. So neither agency is “found in the US constitution,” but the legal authority to make both arguably is. You’re free to your opinion that you like one and not the other, but as far as I can tell, that’s just your opinion. There’s no accounting for taste.

            It is clear however that you have articulated a belief that government ought to do everything that suits its fancy.

            For what it’s worth, I favor policies. I don’t generally have strong opinions about agencies, except insofar as they affect policies.

            I don’t know much about the Dept. of Education. I know it has been a whipping boy for various conservatives. I haven’t found the complaints especially compelling, but that’s not the same thing as stating support; as any student of law knows, there’s a big difference between “Not Guilty” and “Innocent.”

            From my perspective, if government is going to fund something, I think government should check to ensure that the money used for its intended purposes. If that requires an entire agency, so be it.

            At the same time, I’ve often argued for “policy unbundling.” Some of the objections I read regarding the Dept. of Education is in the nature that the feds impose too many extraneous conditions on getting education funds. I prefer policies whereby some funds are for X and other funds are for Y; schools that want both funds must comply with both sets of requirements, but the failure to qualify for X would have no bearing on your ability to qualify for Y. Admittedly, the devil is in the details.

            In short, when you claim to object to something I say but can’t actually quote any specific language, I conclude that either you haven’t read what I said, or haven’t understood it. And this current discussion corroborates that conclusion. Of course, it’s always possible that I haven’t understood what you’ve said. To help avoid this problem, I take the effort to actually quote the language I’m responding to. I would be honored if you could reciprocate this practice.

  4. gabe says

    Again, you (willfully) miss the point.

    Limit government to those powers which have been specifically DELEGATED to it under the US constitution.
    Isn’t it intersting how one may think (attempt to show) that by splitting hairs, one’s argument is therefore persuasive: the isssue of whether the constitution requires the Dept of War or whether it is permitted under it is another example of your remarkable ability to force a discussion along the wrong spur of the track – I think we refer to this as a spurious argument.

    Whether, as you say, you prefer “policies” over agencies is also beside the point as (and I have made reference to this before) “policies” do not exist without an implementing agency. Of course, in the past it required implementing LEGISLATION, but we are apparently well beyond that stage and now prefer our masters use only agency interpretations and guidance letters.

    As an example of how far afield we have drifted, here is a link to an effort (primarily in the UK but backed by some members of the Fed Reserve and the usual academic *experts*) to eliminate cash economies. All the better to implement “negative” interest rates and confiscate the savings of the citizenry Ah, the joys of *expert administration*.

    Now you may claim that this is something that is permitted by the constitution and that my objection is simply only a policy preference. Fair enough – live in your own bubble. As for me, I read in the Constitution that the Congress shall power the power to coin money. I do not see where it authorizes the Congress or an AGENCY to BAN money. Do you? Or am I once again misreading things.

    Here is the link:

    http://www.nationalreview.com/corner/443646/camerons-downing-street-and-war-against-cash

    And finally, I also do not find any grant of power to the Federal Government to manage education. Thus, why a Dept of Ed?

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